Transfer schemes—breaking new ground?

Transfer schemes—breaking new ground?

According to Joe Bannister, partner at Hogan Lovells, the major lesson from Copenhagen Re is the importance the courts continue to place upon the quality of supporting evidence and levels of disclosure when considering both transfer schemes (also known as part VII schemes or insurance business transfer schemes) and schemes of arrangement under Part 26 of the Companies Act 2006 (CA 2006).

Original news

Re The Copenhagen Reinsurance Company (UK) Ltd and another [2016] EWHC 944 (Ch), [2016] All ER (D) 25 (May)

Transfer of long-term insurance business. The Companies Court granted an order, among other things, sanctioning an insurance business transfer scheme to transfer the applicant company, The Copenhagen Reinsurance Company (UK) Ltd’s entire insurance business to another company in the Enstar group.

What are the key things to take from this case?

This was an application to the court to sanction a scheme for the transfer of insurance business (transfer scheme) pursuant to Part VII of the Financial Services and Markets Act 2000 (FSMA 2000). In the main, Snowden J’s ruling is a restatement of the well-recognised grounds upon which the court will exercise its discretion to sanction a transfer scheme. The ruling nevertheless goes further, in that it is the first occasion where the court has had to consider how to deal with the effect of a transfer scheme upon guarantees given by the transferor’s parent company in respect of policies written through the Institute of London Underwriters (ILU). Snowden J held that he had the power under FSMA 2000, s 112(1)(d) to modify the guarantees given to the ILU by Copenhagen Re’s parent. The effect of the modification was that the original guarantee remained in place but on terms that the guaranteed obligations were modified by the court to become those of the transferee under the scheme, Marlon Insurance Company Limited (Marlon).

How did the issues arise?

The case arose out of

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